Reid v. State, No. 113, September Term 2011.

CONSTITUTIONAL LAW – FOURTH AMENDMENT – SEIZURE – USE OF ATASERThe Court of Appeals held that a police officer’s use of Taser to fire two metal darts intoReid’s back affected an arrest requiring probable cause, rather than a Terry stop requiringonly reasonable, articulable suspicion.

CONSTITUTIONAL LAW – PROBABLE CAUSE TO ARRESTReid’s arrest was not supported by probable cause under the facts of the case and, therefore,the evidence recovered from his person and the statement he made after being arrested shouldhave been suppressed.

IN THE COURT OF APPEALS OFMARYLAND

No. 113

September Term, 2011

DAVID REID

v.

STATE OF MARYLAND

Bell, C.J.HarrellBattagliaGreene

AdkinsBarberaMcDonald,

JJ.

Opinion by Battaglia, J.Harrell, Barbera, and McDonald, JJ.,

dissent.

Filed: August 24, 2012

1 The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizures,shall not be violated, and no Warrants shall issue, but uponprobable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the personsor things to be seized.

2 At oral argument, the Assistant Attorney General explained that a Taser can beused in either of two fashions: an officer may make contact directly with a suspect withthe Taser, which will discharge electricity without expelling any darts from the device orthe officer may use the Taser in what was described as dart mode, in which the metaldarts are expelled from the Taser and penetrate the skin before discharging electricity. The Taser in this case was used in dart mode, so our inquiry is limited to that usage.

3 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968)

4 The dissent, in a leap of appellate fact finding, discusses the characteristics of aTaser model, although any specifics were not part of the record in the case. Mostimportantly, the dissent disregards, in the entirety, the particulars of the force involvedwhen the darts penetrated Reid’s back and does not even mention that the darts remainedconnected to Reid’s back, through wires, to the officer holding the Taser weapon, suchthat Reid was leashed to the officer. Furthermore, the dissent disregards the distinction inthis case from United States v. Colon, 654 F. Supp. 2d 326 (E.D. Pa. 2009), whichinvolved a defendant reaching into his waistband for a gun, which Reid did not do.

This case presents us with questions regarding the use of certain technology about

which we have not had occasion to opine before, in the context of the Fourth Amendment.1

The primary issue before us is whether the use by Baltimore City police of a Taser2 that fired

two metal darts into the back of David Reid, the Appellant, affected a Terry3 stop or his

arrest.4 The determination of the type of detention is pivotal, affecting whether a statement

Reid made to the police that he had a gun in his pocket, and the gun itself, should have been

suppressed by the Circuit Court Judge who denied Reid’s Motion to Suppress.

After having been convicted on an agreed-upon statement of the facts of wearing,

5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2

carrying, or transporting a handgun illegally and of being in possession of a handgun after

conviction of a disqualifying offense, Reid appealed to the Court of Special Appeals, but,

before any action was taken in that court, we, on our own motion, granted certiorari, 464 Md.

628, 37 A.3d 317 (2012), to consider the following questions:

1) Should the trial court have suppressed the evidence seized,where the use of a “Taser” to effectuate a Terry stop, under thecircumstances of this case, violated the Fourth Amendment?

2) Did the trial court err in denying Appellant’s motion tosuppress his statement made following arrest and prior toMiranda warnings?5

The State, in its brief, presented the questions as:

1) Was the Fourth Amendment seizure of Appellant supportedby probable cause, and therefore reasonable, regardless ofwhether it was a de facto arrest or investigatory detention?

2) Was Appellant’s statement that he had a gun in his pocketproperly admitted under the “public safety” exception toMiranda, and even if the statement should have beensuppressed, was the gun found in Appellant’s pocketnonetheless properly admitted, thus making the admission of thestatement harmless error?

We shall hold that the use of a Taser to fire two metal darts into Reid’s back converted

what otherwise may have been a Terry stop into a de facto arrest for Fourth Amendment

purposes, and that there did not exist sufficient probable cause to arrest Reid. We shall

further hold that both Reid’s statement and the gun recovered from him should have been

suppressed.

3

When the issue was addressed in the suppression hearing, Detective Scott Reid,

unrelated to David Reid, was the only individual who testified. The Circuit Court Judge

determined that the Detective was credible and made the following findings:

With respect to the facts leading up to the encounter between Reid and police officers,

the judge found that officers received a call from an informant who told them that a tall,

black male was armed and selling drugs at a particular location in Baltimore City:

Detective Reid, he was credible, he provided evidence,he was a relatively experienced officer, showed that he receiveda call or information from another, a superior, a LieutenantMcVicker about a confidential informant and providedinformation, and as counsel noted, I don’t think this isparticularly significant. I mean, it was a confidential informantso it was someone that they actually were aware of and itprovided certain information but it wasn’t particularly thatsignificant information in the sense that it wasn’t predicting anysort of future activity on the targets but nonetheless did provideinformation and in fact there was an individual, a tallerindividual, who he associated with a black Honda in a particularlocation.

The judge went on to find that the officers arrived at the location and observed a group of

men, including a taller man, near a black Honda:

The officers responded at that location, I believe it wasabout 12:30 during the day in a public street and saw anindividual sort of, Mr. Reid was described to be the tallerindividual, I guess among the three or four individuals that werepresent near this black Honda, he was the taller of theindividuals and the officers then went to respond, and the callwas for drugs, someone associated with drugs and/or guns inthis vehicle.

The judge then found that the officers were wearing their badges and guns, thereby giving

4

Reid notice that they were police and that Reid moved to conceal the right side of his body

from one officer before running, as the officers approached:

[the officers] were wearing indicia of being police,meaning badges and they had their badges hanging down and Ibelieve a gun, the defendant was observed, at that particularpoint in time, to try to enter the black Honda which I guess,again, would corroborate the fact that he was somehowassociated with the Honda. He also, as the officers came, theofficers indicated or the officer, Detective Reid, indicated thathe made some sort of actions to secrete himself or what hecalled blading which I, for the record, is sort of turning yourselfaway from the police officers so they couldn’t see the sidewhere in fact the gun would be, checking the area where the gunwould be, and then, as the officers approached, at that time, thedefendant ran.

The judge also found that the officers called out to Reid to stop, and, when he did not, the

Detective fired two metal darts from his Taser at Reid. The judge, relying on a case from the

United States District Court for the Eastern District of Pennsylvania, then determined that

the Detective effected a proper Terry stop by shooting the darts into Reid:

The officers at that particular point in time attempted tostop the defendant by calling out to him and I would find at thatparticular point in time, based on of all those observations, theconfidential informant information which is corroborated bywhat the officers saw, by the fact that he made sort of evasivemaneuvers when the officers came, and then obviously the flightwhen the officers came up, he ran. And then while he wasrunning away, he had gym shorts on and in the gym shorts therewas a heavy object which made sort of a swinging motion whichwould again be consistent with having a handgun or somethingsimilar to a handgun in his pocket.

So at that point in time, I find that the officers hadarticulable suspicion both to stop and to frisk the defendant.The defendant did not respond when the officers identifiedthemselves and asked him to stop. At that time he was struck

6 The public safety exception to the Miranda requirement was articulated by theUnited States Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81L. Ed. 2d 550 (1984), in which the Court held that there is a narrow exception to the rulethat Miranda warnings must be given to a suspect in custody before interrogation maybegin in instances in which there exists a threat to public safety.

5

with a Taser. It seems to me the case law is very consistent, Imean, obviously when the officers have articulable suspicion tostop someone, they can in fact use reasonable force to effectuatethe stop which could include tackling him, handcuffing him, andI was able to find at least one case, there was a federal case, inthe United States District Court for the Eastern District ofPennsylvania which is United States v. Colon, 654 F. Supp. 2d326 (E.D. Pa. 2011), in which the Court found that in fact it wasreasonable and appropriate to use a Taser to in fact stop thedefendant when, one, he was believed to be armed, and, two, hewas responding to what the officers asked – when the officersasked him to stop and he was in a public street at that time, apublic location I should say.

The judge went on to consider whether or not Miranda warnings should have been

given to Reid because of his determination that a reasonable person in Reid’s position would

have believed he was in custody and “not free to go”:

It seems to me at some point in time, a stop can get to thepoint where someone is in custody and certainly it seems to meunder the facts of this circumstance where in fact this gentlemanwas knocked down, he had two prongs in his back from wherehe had been struck by the Taser and as the Detective indicated,in fact it would take a medical technician or a medical personnelto actually remove the Taser, I would find that in fact underthose circumstances, a reasonable person would believe thatthey were in custody and not free to go.

The judge concluded, however, that the public safety exception6 to Miranda applied and

denied suppression of Reid’s statement and the gun itself, but declined to rule on the issue

6

of inevitable discovery:

At this particular point in time what the evidence showsthough is in fact the simple question was, I think the Detectiveasked him if he had anything illegal on him, and this was in thecontext of just having taken this person down, having articulablesuspicion to believe that he was armed, I would find that in factthis would qualify under the safety, public safety exception thatwas set out in New York v. Quarles which is 467 U.S. 49 andthen there were similar cases in Maryland, specifically – well,not exactly a similar case but talked – discussed about the publicsafety section which is Thomas v. State, which is 128 Md. App.274 and there is also, I believe, was the case of Hamilton v.State which is another public safety exception which was 62Md. App. 603.

I think under the circumstances that these particularofficers were not asking that question for some sort ofinvestigatory term, certainly I would find at that point in time,they would have had a right to frisk him, I think it was clearlyjust to ask for a public safety, safety of the officers, just quicklytrying to get down to the reason why they stopped him and theyasked that and at that time, the defendant did respond that he hada gun in his pocket, and the officers then searched his pocket.And again, I don’t know if I have to go there, I don’t really findthe record would not – at this particular point would besufficient that there would be in a sense inevitable discovery butI think that is irrelevant at this point. I find there was a publicsafety exception, therefore the statement was – the response tothe statement would be admissible and therefore the recovery ofthe gun would be admissible.

In essence, the judge determined that the Detective attempted to initiate a Terry stop by

yelling at Reid to stop, but that the stop was converted into a custodial interrogation after the

two metal darts had been deployed and hit their mark, but that the public safety exception

“saved” the statement given by Reid prior to having been Mirandized and the gun from

suppression.

7

Our consideration is the same as that of the trial judge, based on his findings at the

suppression hearing, more particularly, whether penetration by the two metal darts from the

Taser effected an arrest, requiring probable cause, or an investigatory stop, based upon only

reasonable, articulable suspicion, under the Fourth Amendment to the United States

Constitution.

In its landmark decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889

(1968), the Supreme Court interpreted the Fourth Amendment to permit a law enforcement

officer to stop an individual that the officer suspected may have been involved in criminal

activity. The Court held if an officer has reasonable, articulable suspicion that the suspect

was armed, the officer could frisk the individual for weapons. Id at 24, 88 S.Ct at 1881, 20

L.Ed 2d at 907-908. The Court noted, however, that this exception to the requirement that

an officer have probable cause before conducting a search was narrowly drawn and limited

to frisking only the individual’s clothing for weapons. Id. at 29–30, 88 S.Ct at 1884–85, 20

L.Ed. 2d at 911.

The State asserts that what occurred in the present case was a Terry stop, because it

analogizes deployment of the two metal darts into Reid’s back to a “hard take down” that we

determined was a Terry stop in In re David S., 367 Md. 523, 789 A.2d 607 (2002). In In re

David S., we considered whether ordering David S. and Hall, a man with him, to the ground

at gunpoint, “put[ing] them on the ground,” and handcuffing them constituted a proper Terry

stop. In that case, officers were conducting a stakeout of a house they believed to be an open

air drug market, when they observed Hall engage in what they believed to be a drug

8

transaction. Before being able to apprehend him, however, Hall entered the house.

Approximately half an hour later and after changing their stakeout location, the officers

observed Hall walking with David S. down a different street and stop at an abandoned house.

David S. went behind the house, returned, and showed Hall something in his waistband. The

officers believed David S. had obtained a handgun and moved in “with their weapons drawn,

forced [David S.] to the ground and placed him in handcuffs.” Id. at 539, 789 A.2d at 616.

After Hall and David S. were placed in handcuffs, the officers frisked David S. and found

a hard, wrapped object in his waistband that, once unwrapped, was determined to be cocaine.

Before analyzing the particulars of David S.’s detention to determine if it was a proper

Terry stop, we noted that “it is important to recognize that there are no per se rules or bright

lines to determine when an investigatory stop and frisk becomes an arrest.” Id. at 534, 789

A.2d at 613. We also reiterated the principle that the use of drawn weapons or handcuffs

does not per se convert a Terry stop into an arrest, so long as those tactics are reasonable

measures designed to ensure officer safety. After considering the totality of the

circumstances surrounding David S.’s detention, we determined that the officers had

reasonable, articulable suspicion that David S. and Hall had committed or were about to

commit a crime. Relying in part on the approval of “hard take downs” in Lee v. State, 311

Md. 642, 537 A.2d 235 (1988), we held that even though the intrusion onto David S.’s

Fourth Amendment rights was substantial, it was reasonable because of the threat to officer

safety, and thus the detention was a proper Terry stop.

In Lee v. State, 311 Md. 642, 537 A.2d 235 (1988), we considered circumstances in

9

which officers had received a tip that two men who were playing basketball on a public court

were in possession of a weapon used in a robbery. When the officers arrived at the courts,

they maintained contact with the person who gave them the tip, who told them the gun was

in a bag hanging on the fence. After spotting Lee coming out of a nearby house with a blue

bag, the officers moved in with shotguns drawn and ordered everyone, including Lee, to lie

down on the ground. A subsequent search of the bag revealed the weapon.

In reviewing the denial of Lee’s Motion to Suppress, we stated that the officer’s order

to Lee to lie down, made with guns drawn, did not elevate the stop to an arrest. We noted

that the level of intrusion onto Lee’s person was minimal as he was only ordered to lie down

and was never physically touched by the officers until the gun was recovered. We

considered the following circumstances to be relevant to our determination: that the tip

provided information that Lee was armed, that the officers were exposed to considerable

danger of being shot, that by ordering everyone to the ground the officers decreased the

likelihood of danger to bystanders, and that the detention only lasted two minutes. We then

concluded that the use of force was reasonable under the circumstances, relying, in part, on

United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985), in which

the Supreme Court expressly approved threatening a suspect with force, in that case deadly

force, when performing a Terry stop involving a suspect the officer reasonably believed to

be armed and dangerous.

While at the heart of the State’s argument are our decisions in In re David S. and Lee,

both Terry stop cases, Reid argues, conversely, that having two metal darts penetrate his

7 The trial judge apparently believed that once the Taser darts hit Reid in theback,Reid believed he was not free to go and, thus, was under a de facto arrest:

he had two prongs in his back from where he had been struck bythe Taser and as the Detective indicated, in fact it would take amedical technician or a medical personnel to actually removethe Taser, I would find that in fact under those circumstances, areasonable person would believe that they were in custody andnot free to go.

10

body, such that medical assistance was needed to remove them, effected a de facto arrest.

To put de facto arrest in context, it is important to recognize that, while a formal arrest occurs

when an officer informs the suspect that he or she is under arrest, a de facto arrest occurs

when the circumstances surrounding a detention are such that a reasonable person would not

feel free to leave.7 In Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L.Ed. 2d 824

(1979), the Supreme Court considered whether Dunaway’s seizure constituted a de facto

arrest under the Fourth Amendment and concluded that he was under arrest, because

Dunaway believed he was not free to go based on the facts that he was taken to the police

station in a squad car, was not told he was free to leave, and would have been physically

restrained were he to have attempted to leave. Id. at 212, 99 S. Ct. at 2256, 60 L. Ed. 2d at

835–36. In Owens v. State, 399 Md. 388, 924 A.2d 1072 (2007), we reiterated this standard

for a de facto arrest, when we opined that “a person is considered in custody when a

reasonable person [would] have felt he or she was not free” to end the encounter and leave.

Id. at 428, 924 A.2d at 1095 (internal quotations omitted).

We recently had occasion to again address the issue of what constitutes a de facto

11

arrest in Bailey v. State, 412 Md. 349, 987 A.2d 72 (2010). In Bailey, police officers were

patrolling at night in Prince George’s County and saw Bailey standing in the shadows near

a house. After calling out to Bailey and not hearing a response, the officers got out of their

car and approached him. When they neared Bailey, the officers detected a strong scent of

ether and immediately grabbed him, put his hands over his head, and searched him,

recovering a glass vial filled with PCP. Before us, Bailey argued that his seizure under these

circumstances was a de facto arrest.

We agreed and concluded that the officer’s actions elevated Bailey’s detention to a

de facto arrest, because the officer “acted with actual authority and physically seized the

petitioner, and the petitioner had a clear understanding that he was not free to leave.” Id. at

373, 987 A.2d at 87. In reaching our conclusion, we relied in part on our decision in Grier

v. State, 351 Md. 241, 718 A.2d 211 (1998), in which we stated, in the context of

determining whether Grier’s post-arrest silence could be used against him at trial, that being

subjected to an officer’s “custody and control” constituted an arrest:

[a]fter Grier came out of the dead-end alley, the officersimmediately arrested him. The officers pursued Grier, “got”him, and put him on the ground. Once [Grier] was on theground and in the custody and control of the police officers, hewas certainly under arrest. Although Officer Farley may havehad the right simply to detain and question [Grier] beforeplacing him in custody, he did not do so.

Id. at 252, 718 A.2d at 216-217 (internal citations omitted).

Our colleagues on the Court of Special Appeals, in Dixon v. State, 133 Md. App. 654,

758 A.2d 1063 (2000), had occasion to consider the issue of whether a suspect had been

12

merely detained under Terry or subjected to a de facto arrest. In Dixon, officers had received

a tip that Dixon would be transporting ten pounds of marijuana in a car and would be parking

on the second level of a garage at Montgomery Mall at 8:15 PM. When the officers arrived,

Dixon’s car was already parked, and the officers saw him eventually return and get into the

car. The officers then blocked the car in with their cruisers, removed and handcuffed Dixon,

whereupon nine gallon-sized bags of marijuana were recovered from the car’s trunk.

The Court of Special Appeals held that the event was an arrest when Dixon was taken

out of his car and handcuffed, stating:

As we see it, the events in the garage exceeded an investigatorystop under Terry and its progeny. Accordingly, we do not agreewith either the State or the trial court that appellant was merelydetained prior to the car search. Instead, we conclude that theofficers arrested appellant at the time they blocked his car,removed him from his vehicle, and handcuffed him.

Id. at 673-74, 758 A.2d 1073. In so holding, the Court of Special Appeals relied upon our

oft-quoted language from Grier for the principle that when a suspect is subjected to the

custody and control of an officer in such a significant way, he or she is arrested.

Application of the principles from Terry and in the de facto arrest cases leads us, with

respect to the circumstances in the present case, to determine that a person shot in the back

with two metal darts, as was Reid, would reasonably believe that he or she was not free to

leave the encounter, especially when, as the trial judge found, a medical technician would

8 Although not found by the trial court, it appears that not only did the dartspuncture the body, but that they apparently remain connected to the Taser device, akin tofastening a leash to the suspect, whereby the officer can maintain complete control over himor her. See Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010) (“The X26 [Taser] usescompressed nitrogen to propel a pair of ‘probes’ – aluminum darts tipped with stainless steelbarbs connected to the X26 by insulated wires – toward the target at a rate of over 160 feetper second. Upon striking a person, the X26 delivers a 1200 volt, low ampere electricalcharge through the wires and probes into his muscles. . . . The electrical impulse instantlyoverrides the victim’s central nervous system, paralyzing the muscles throughout the body,rendering the target limp and helpless.” (footnotes omitted)).

9 The State’s argument that a Taser used in dart mode is analogous to tackling, andthus permitted as a “hard take down” under In re David S., is not on point because tacklingwas not the “hard take down” analyzed in In re David S. The State, however, directs ourattention to various federal courts that have expressly considered tackling and determinedthat it can effect a Terry stop. In United States v. Dykes, 406 F.3d 717 (D.C. Cir. 2005), forexample, the United States Court of Appeals for the District of Columbia Circuit consideredwhether chasing after a suspect, who ran away after police pulled into a parking lot in whichhe was standing, and tackling him to the ground was sufficient to elevate the encounter froma Terry stop to an arrest. Id. at 718. The Court concluded that tackling was a reasonablemethod of effectuating the stop, noting that the “‘amount of force used to carry out the stop

(continued...)

13

have to have removed the prongs.8 These circumstances are very similar to those in Bailey,

Grier, and Dixon, in that Reid was subjected to the custody and control of the officer

detaining him by the use of physical force. While we recognize that the suspects in Bailey,

Grier, and Dixon were not believed to be armed and that Reid was, such belief does not

convert a de facto arrest to a Terry stop found in In re David S. and Lee, because the levels

of intrusion and control involved in Reid’s detention are unquestionably greater than those

used to detain either Lee or David S. The use of a Taser in dart mode penetrates the body

for an indefinite time period, differentiating it from a “hard take down,” the use of handcuffs,

and tackling.9 A reasonable person would not feel free, nor even be able, to go under these

9(...continued)and search must be reasonable, but may include using handcuffs or forcing the detainee tolie down to prevent flight.’” Id. at 721, quoting United States v. Laing, 889 F.2d 281, 285(D.C. Cir. 1989). Tackling, however, is not akin to the force at issue.

10 The Court of Appeals for the Third Circuit, in an unpublished opinion, UnitedStates v. Colon, 434 F. Appx. 88 (3rd Cir. 2011), affirmed a district court decision, UnitedStates v. Colon, 654 F. Supp. 2d 326 (E. D. Pa. 2009), discussed infra, involving the use ofa Taser to effect a Terry stop. The Third Circuit, however, did not address the Taser issuein its unreported affirmance of the trial court.

11 There have been reported cases from various federal circuit courts that haveconsidered, in the context of claims brought under 42 U.S.C. Section 1983, whether the useof a Taser in dart mode was reasonable, but only in the context of an arrest, not a Terry stop.Compare Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (holding that the use of a Taserin dart mode was not reasonable to arrest a woman for interfering with the arrest of herhusband when she made only minimal contact with the officer) and Bryan v. MacPherson,630 F.3d 805 (9th Cir. 2010) (holding that the use of a Taser in dart mode was not reasonableto effect an arrest of a man who got out of his car wearing only his underpants and wasscreaming gibberish because he did not pose a threat to the officer) with Draper v. Reynolds,369 F.3d 1270 (11th Cir. 2004) (holding that the use of a Taser in dart mode to arrest a truckdriver who was becoming increasingly agitated and refusing to obey lawful commands wasreasonable) and Russo v. Cincinnati, 953 F.2d 1036 (6th Cir. 1992) (holding that the use ofa Taser in dart mode to arrest a man holding two knives and threatening officers wasreasonable).

14

circumstances: Reid was, thus, arrested.

We have reviewed hundreds of cases involving the use of force in Terry stops, and no

appellate court has even considered,10 much less approved, the use of a Taser in dart mode

to effect a Terry stop.11 The only analogous situation to the present one is in the use of a

firearm expelling a bullet, which the Supreme Court assumed was an arrest in Tennessee v.

Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 1699, 85 L. Ed. 2d 1, 7 (1985).

The State, however, points to two federal district court cases in which the use of

Tasers was considered, United States v. Colon, 654 F. Supp. 2d 326 (E. D. Pa. 2009) and

15

United States v. Russ, 772 F. Supp. 2d 880 (N.D. Ohio 2011). In Colon, officers saw Colon

walking down the street in a “high-crime” area late at night. They followed him in their car,

eventually pulling up and asking him where he was going, because of their concern that he

might have been carrying a firearm in his waistband. They also noticed that he was very

nervous and was continually looking over his shoulder, such that he almost ran into a wall.

When the officers got out of their car to speak with him, Colon fled. During the subsequent

chase, Colon reached into his waistband, where the officers believed he was carrying a gun,

and an officer eventually used his Taser to shoot Colon with metal darts.

In ruling on a motion to suppress a gun eventually found on Colon, the district judge

analogized the use of a Taser in dart mode to tackling and did not consider the affront to

bodily integrity that two prongs in the back effected. We disagree; the use of a Taser in dart

mode is not analogous to tackling, because the darts penetrate the skin of an individual, and

the individual must wait for medical personnel to remove them.

In Russ, officers were responding to a report of a brawl at a bar in Ohio, where they

saw Russ leaving the scene. Russ appeared very startled and adopted a fighting stance, when

the officers approached. Thereafter, Russ swung at an officer and then took off running.

When they took chase, the officers, fearful that a shiny object in his waistband was a gun,

fired darts at Russ from a Taser, which did not stop Russ from running.

The trial judge determined that the officers had reasonable, articulable suspicion to

effect a Terry stop, and “the Officers were entitled to act for their own protection, and for the

protection of others in the area, and attempted to do so by deploying a taser.” Russ, 772 F.

16

Supp. 2d at 891. Obviously, the fact that the darts fired from the Taser did not immobilize

Russ differentiates that case from the instant case. Further, Russ never raised the arrest issue

when he questioned the Taser attempt. As a result, we do not find succor in the Russ case.

In the present case, the trial judge determined that Reid was in custody at the time he

was struck in the back by the metal darts fired from the Detective’s Taser – a determination

with which we agree. The judge’s statement that “a reasonable person would believe that [he

or she was] in custody and not free to go” after having been struck in the back with metal

darts from a Taser is unquestionably correct. No one who is subjected to the ongoing

application of force as is caused by having metal projectiles lodge themselves in one’s flesh

would feel free to go about his or her business. Moreover, Reid wasn’t free to go after

having been shot by the darts because he had to wait for a medical technician to remove

them. Reid unquestionably was subjected to the complete control of the police, so that he

was subjected to a de facto arrest when the darts penetrated his body and not a Terry stop.

As soon as the darts penetrated Reid’s body, a de facto arrest occurred for which probable

cause must have existed.

To explore this issue, we are required to review the record developed at the

suppression hearing. See Bailey, 412 Md. at 374-376, 987 A.2d at 87-88 (proceeding to

determine whether probable cause existed, after holding that Bailey’s detention was a de

facto arrest and not a Terry stop). We have stated that we look at the totality of the

circumstances, in reviewing the record to see whether there existed probable cause at the time

of arrest, to determine whether “the facts and circumstances within [the officers’] knowledge

12 Generally, it is difficult to wrest probable cause from a record developed in thetrial court to countenance a Terry stop; when we have been able to do so, it has beenwhen there had been evidence presented at the suppression hearing of a direct relationshipbetween the crime and what the police witnessed. See Elliott v. State, 417 Md. 413, 10A.3d 761 (2010) (holding that probable cause existed based on the smell of marijuanawhen officers approached a car); Donaldson v. State, 416 Md. 467, 7 A.3d 84 (2010)(holding that probable cause existed based on experienced narcotics officers witnessing asales transaction of vials of an unknown substance in an area known for drug sales).

17

and of which they had reasonably trustworthy information [are] sufficient in themselves to

warrant a man of reasonable caution in the belief that an offense has been or is being

committed.” Longshore v. State, 399 Md. 486, 501, 924 A.2d 1129, 1137 (2007) (alterations

in original).12

The findings in this case upon which a determination of whether probable cause would

have existed at the time Reid was arrested are:

• Reid matched a description given by an informant of “a taller individual . . .associated with a black Honda in a particular location,” and the informant wascalling about “drugs, someone associated with drugs and/or guns and in thevehicle”;

• Reid turned his body away from one officer and attempted to open thepassenger door of the car when the officers approached the car;

• Reid “check[ed] the area where the gun would be”; • Reid had something heavy in his pocket that caused it to sway; and• Reid ran from the police.

These facts are not sufficient to establish probable cause under our jurisprudence. More

particularly, in Bost v. State, 406 Md. 341, 958 A.2d 356 (2008), when confronted with

similar facts, we found them sufficient to satisfy the reasonable suspicion standard, short of

probable cause. We considered whether District of Columbia police officers had reasonable

suspicion to justify crossing into Maryland in hot pursuit of a suspect and effecting his arrest

13 The Uniform Act on Fresh Pursuit is contained in Sections 2-304 to 2-309 of theCriminal Procedure Article, Maryland Code (2001, 2008 Repl. Vol.)

18

under the Uniform Act on Fresh Pursuit.13 The suspect in Bost was in an area known for drug

trafficking, fled at the approach of police officers, and clutched his side in such a way as to

indicate he could be carrying a gun. We held that presence in a high crime area, unprovoked

flight, and furtive movements consistent with possessing a gun were, in the aggregate,

sufficient to establish reasonable, articulable suspicion, short of probable cause. Id. at 359-

360, 958 A.2d at 367.

In the present case, the only additional fact is the existence of the informant’s tip,

which the trial judge described as not “particularly significant,” because the tip itself was not

specific enough and was not based on special knowledge sufficient to foretell the future. See

in this regard Lee v. State, 311 Md. at 654-657, 537 A.2d at 240-242 (holding, based on

police corroborating an informant’s tip that did not foretell and future activity on the part of

the defendants, “the police had a relatively high degree of reasonable and articulable

suspicion. . . [b]ut, at that time, the suspicion did not reach a level of ‘probability . . . of

criminal activity.’” quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.

Ed. 2d 527, 546).

The judge had to have determined that there was probable cause, however, because

his application of the public safety exception articulated in United States v. Quarles, 467 U.S.

649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984), requires a lawful arrest for the exception to

be utilized to “save” a statement that had not been Mirandized. In Quarles, the Supreme

19

Court held that an arrestee need not be given Miranda warnings before being questioned if

the officers’ questions were directed at eliminating a threat to the public’s, or their own,

safety, after the individual had been lawfully arrested.

The Court of Appeals for the Ninth Circuit succinctly explained the application of the

Quarles public safety exception in United States v. Patzer, 277 F.3d 1080, 1085 (9th Cir.

2002). In Patzer, an officer pulled over Patzer while he was driving for having a broken

taillight. Upon approaching the vehicle, the officer noticed guns on the back seat and that

Patzer’s eyes were glassy. Suspecting that Patzer had been smoking marijuana, the officer

ordered him out of the car and gave him a series of field sobriety tests, one of which Patzer

failed. The officer then asked him to be honest, and Patzer responded that he had been

smoking marijuana earlier.

Thereafter, the officer placed Patzer under arrest for driving under the influence and,

without giving him Miranda warnings, asked Patzer if he was hiding anything illegal in the

truck. Patzer admitted that there were illegal guns and grenades in the back of the truck, and

the officer seized a sawed-off shotgun, a modified rifle, and grenades. Patzer unsuccessfully

moved to suppress the evidence obtained from his truck and was subsequently convicted of

a host of weapons and drug charges.

In reviewing the denial of Patzer’s motion to suppress his statements, the Ninth

Circuit first held that Patzer’s arrest for driving under the influence was not lawful under the

applicable motor vehicle code. The Court then considered whether the un-Mirandized

statements made by Patzer were properly admitted under the public safety exception. The

20

Court noted that the public safety doctrine exists for exigent circumstances in which a valid

arrest has been made and in which an officer has a reasonable belief that there is a threat to

public safety precipitating questions of the arrestee out of safety concerns. Patzer had not

been lawfully arrested, and the Ninth Circuit then concluded that Patzer’s statements could

not be admitted under the public safety exception because, that “questions posed under

exigent circumstances might not be separate Fifth Amendment violations does not mean that

there is a break in the chain of events from the original Fourth Amendment violation.” Id.

at 1085. In so holding, the Court stated, “[j]ust as reading Miranda warnings to a suspect

after an unlawful arrest does not automatically act as a ‘cure-all’ and remove the Fourth

Amendment taint from subsequently obtained statements, neither does the existence of an

exception to the Miranda rule” remove the Fourth Amendment taint. Id.

In the present case, Reid was arrested without probable cause, so the Quarles public

safety exception is not applicable. To do otherwise would be to eviscerate the requirement

of a lawful arrest.

The State asserts, however, that even if Reid’s statement were inadmissible because

of the Miranda violation, the gun that was recovered is admissible, relying on United States

v. Patane, 542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004) (plurality opinion), for

the principle that tangible, derivative evidence recovered as a result of a Miranda violation

can be admitted into evidence at trial, as long as the statement leading to the discovery of the

tangible evidence was not actually coerced. See id. at 644, 124 S. Ct. at 2630, 159 L. Ed. 2d

at 679 (“[I]t is true that the Court requires the exclusion of the physical fruit of actually

21

coerced statements. . . .”). This argument misses the mark for the same reason that Quarles

is inapplicable in the present case; Reid was not lawfully arrested.

Were we to permit the admission of the gun, what would be the imperative for law

enforcement to adhere to Fourth Amendment arrest strictures? The United States Court of

Appeals for the Eighth Circuit, in United States v. Villa-Gonzalez, 623 F.3d 526 (8th Cir.

2010), considered this question when addressing an argument very similar to the State’s

argument in the present case. In holding that the principle announced in Patane could not

be used to prevent the suppression of physical evidence discovered as a result of an un-

Mirandized statement following an unlawful seizure, the court stated, “[w]e find Patane

inapplicable here. Rather, we are guided by Wong Sun v. United States. . . . Here, like in

Wong Sun, the initial constitutional violation was a Fourth Amendment violation.” Id. at 535

(internal citations omitted). We agree; Reid was arrested without probable cause, so that the

Patane principle does not apply.

The State further argues that the admission of the statement was harmless error,

because the gun itself was properly admitted under the doctrine of inevitable discovery. The

doctrine of inevitable discovery is not applicable on the facts of this case, however, so we do

not reach the harmless error argument.

In arguing inevitable discovery, the State relies on Elliott v. State, 417 Md. 413, 10

A.3d 761 (2010), in which we opined that the doctrine of inevitable discovery “is used to

overcome the presumed suppression of evidence gained from an unlawful search. The State

must show, by a preponderance of the evidence, that the evidence inevitably would have been

22

discovered through lawful means.” Id. at 436, 10 A.3d at 774. In the present case, the trial

judge made no finding regarding whether the gun taken from Reid would have been found

inevitably, although the State did briefly argue inevitable discovery at the hearing on the

Motion to Suppress, saying only that “[w]hen he is stopped, he asked, well he’s asked is there

any weapon on you but they are going to frisk him, obviously, they believed he had a

weapon.”

Were we to rely on our own fact-finding in this record, however, we would be running

afoul of our own jurisprudence, especially that which was articulated recently in Elliott v.

State, 417 Md. 413, 10 A.3d 761 (2010), in which we considered whether it was proper for

the Court of Special Appeals to address the issue of inevitable discovery sua sponte. Officers

in that case received a tip from a reliable informant that a man named Winston would be

arriving at a shopping center in a black Nissan, inside of which would be a large quantity of

marijuana. Elliott parked his car, which matched the informant’s description, at the shopping

center. After he got out and began walking towards the stores, he was surrounded by SWAT

officers with assault weapons who ordered him to the ground. After searching Elliott and his

companion and recovering the keys to the car, a Drug Enforcement agent went to the car,

detected the odor of marijuana, and opened the trunk, which smelled more strongly of

marijuana. He closed the trunk and waited for a K-9 unit to arrive. The dog alerted to the

trunk of the car, at which point the officers took Elliott and his companion to the police

station. The car was searched at the station and police found twenty pounds of marijuana in

suitcases in the trunk. Prior to trial, Elliott unsuccessfully sought to have the marijuana

23

suppressed.

After he was convicted, Elliott appealed the denial of his motion to suppress, arguing

that he had been arrested without probable cause when he was ordered to the ground, and any

evidence seized thereafter should have been suppressed. The Court of Special Appeals

agreed that he had been arrested at that time, but held that the motion to suppress the

evidence was properly denied because of the doctrine of inevitable discovery, which the

court raised sua sponte. We granted Elliott’s Petition for Certiorari, as well as the State’s

conditional cross-petition, to consider, inter alia, whether it was proper for the Court of

Special Appeals to have upheld the denial of the motion to suppress under the inevitable

discovery doctrine. We held that it was not proper, under the facts of the case, for the Court

of Special Appeals to have raised the issue sua sponte, because the record from the

suppression hearing did not contain any evidence showing what would have happened were

the illegal act not to have occurred. In so holding, we relied on Stokes v. State, 289 Md. 155,

423 A.2d 552 (1980), in which we held that the inevitable discovery exception to the

exclusionary rule did not apply because the State “could not meet the burden of proving the

exception because no evidence was produced at the suppression hearing to support the

exception.” Elliott, 417 Md. at 438, 10 A.3d at 776.

The State, in this case, asserts in its brief that, “[t]he record leaves little doubt that the

police would have discovered the gun without Appellant’s improper statement.” The record

is devoid of any evidence of police procedure or the course of action the Detective would

have pursued had the unlawful arrest not occurred; the judge failed to make related findings.

24

To account for the lack of such direct evidence, the State argues that because the Detective

was investigating Reid for possession of a gun, “it is beyond question that Detective Reid

would have frisked Appellant’s shorts and discovered the gun.” We stated in Stokes,

however, that “[i]t is true that the State avows in this Court that the police, absent Stokes’

statement, ‘would’ have searched the ceiling above petitioner’s bedroom. This unsupported

assertion, however, is no substitute for evidentiary proof.” Stokes, 289 Md. at 165, 423 A.2d

at 557–58. Keeping in mind the principle that “speculation will not satisfy the demands of

the inevitable discovery doctrine,” Elliott, 417 Md. at 437, 10 A.3d at 774, quoting Williams

v. State, 372 Md. 386, 416, 813 A.2d 231, 249 (2002), the State’s argument must fail because

of our unwillingness to do appellate fact finding on a record devoid of evidence of what

would have occurred rather than what could have occurred.

Because the statement Reid made and the gun that was recovered from his person

were the products of an unlawful arrest, and none of the exceptions upon which the State

relies apply, we conclude that Reid’s Motion to Suppress should have been granted.

JUDGMENT OF THE CIRCUIT COURTFOR BALTIMORE CITY REVERSED.CASE REMANDED TO THAT COURT FORA NEW TRIAL. COSTS TO BE PAID BYTHE MAYOR AND CITY COUNCIL OFBALTIMORE.

IN THE COURT OF APPEALS

OF MARYLAND

No. 113

September Term, 2011

DAVID REID

v.

STATE OF MARYLAND

Bell, C.J.,HarrellBattagliaGreeneAdkinsBarbera McDonald,

JJ.

Dissenting Opinion by Harrell, J., which Barbera and McDonald, JJ., join.

Filed: August 24, 2012

1 The word “TASER®” (in all capital letters) often refers to the largest manufacturer ofelectronic control devices or “ECDs” (also known as “CEDs,” conductive energy devices). Theword “taser” is also the colloquial term for all ECDs on the market today, regardless of themanufacturer. I shall use taser or ECD as the generic noun for these devices and shall usetase/tasing/tased as the appropriate tenses of verbs describing the action of deploying a taser on ahuman subject.

The taser is often grouped with those weapons deemed “less-than-lethal.” This term ofart is used interchangeably in academic journals with “non-lethal” and “less-lethal.” Often theseterms refer to police methods, such as flexible batons, bean-bag shotguns, tasers, pepper spray,canines, four-point restraints (hog-tie), and the baton (also known as a nightstick) that fall shortof the use of a firearm.

2 Jack Cover, a NASA scientist, coined the term taser, which stands for Thomas A. Swift ElectricRifle, a reference to Cover’s favorite childhood science-fiction character. Sebastian N. Kunz etal., Functioning and Effectiveness of Electronic Control Devices Such as the TASER® M- and X-Series: A Review of the Current Literature, J. Forensic Sci., 2012, at 1.

3 Unless otherwise indicated, all references to a Terry stop refer to the United States SupremeCourt’s explication in Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889,911 (1968), in which the Court held that a police officer need only have reasonable suspicionthat criminal activity is afoot in order to stop and frisk a person for weapons. The lower level ofsuspicion is justified by the potential danger to the police officer, as well as to the public-at-large.

With respect, I dissent. Detective Reid’s use of a taser1, 2 to effectuate a Terry3 stop

and restrain Petitioner, David Reid (“Reid”) (no relation), was reasonable, given the

circumstances of this case. Therefore, I would affirm the judgment of the Circuit Court for

Baltimore City on the grounds that the police officer had reasonable suspicion to effectuate

a Terry stop and the use of the taser was a reasonable use of force, which did not escalate the

encounter to a de facto arrest requiring probable cause.

I. What is Reasonable Force in a Terry Stop Context?

A. Various Courts and Their Various Interpretations of Reasonable Force

As a formal detention, a Terry stop implicates a person’s Fourth Amendment rights

against “unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868,

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1873, 20 L. Ed. 2d 889, 899 (1968). Courts and scholars across the land approve varying

levels of force in order for a police officer to maintain his or her own safety and the safety

of the public-at-large when conducting an investigatory, or Terry, stop. The Supreme Court

defines the reasonable force that does not convert a Terry stop into a de facto arrest as that

force which is “reasonably necessary to protect [the police officer’s or officers’] personal

safety and to maintain the status quo during the course of the stop.” United States v. Hensley,

469 U.S. 221, 235, 105 S. Ct. 675, 684, 83 L. Ed. 2d 604, 616 (1985). Additionally, the

Supreme Court defines the outer boundary of reasonable force based on the danger that the

officer believed himself or herself to be facing at the time the force in question is used.

Tennessee v. Garner, 471 U.S. 1, 8, 105 S. Ct. 1694, 1699, 85 L. Ed. 2d 1, 7 (1985) (holding

that when a suspect is believed to be unarmed, the use of deadly force to prevent fleeing is

unreasonable).

The Model Code of Pre-Arraignment Procedures is instructive on how much and

when force may be used by police during an investigatory stop. The Model Code states, in

pertinent part:

(3) Use of Force. In order to exercise [an investigatory-typestop], a law enforcement officer may use such force, other thandeadly force, as is reasonably necessary to stop any person orvehicle or to cause any person to remain in the officer’spresence.

Model Code of Pre-Arraignment Procedure § 110.2(3) (1975). The American Law Institute

reasoned there that it would be “frustrating and humiliating” to tell an officer he or she has

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the authority to stop someone, but must stand by while that person ignores an order and flees.

Model Code of Pre-Arraignment Procedure § 110.2 cmt. (1975). This sentiment, that

unchallenged escape should not be an acceptable outcome, was echoed by Justice Rehnquist

when he wrote, “The Fourth Amendment does not require a policeman who lacks the precise

level of information necessary for probable cause to arrest to simply shrug his shoulders and

allow a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145, 92

S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 616 (1972).

Federal courts enumerate factors and a balancing test by which we should evaluate

the use of reasonable force. The Seventh Circuit catalogs five factors (which other courts use

frequently) when evaluating the reasonableness of the force employed: the nature of the

crime under investigation; the degree of suspicion; the location of the stop; the time of day;

and, the reaction of the suspect to the approach of the police. United States v. Ocampo, 890

F.2d 1363, 1369 (7th Cir. 1989) (citing, among other cases, United States v. Serna-Barreto,

842 F.2d 965, 967 (7th Cir. 1988)). The Ninth Circuit described the Fourth Amendment

balancing test as weighing “‘the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing governmental interests at stake’” or

“‘balanc[ing] the amount of force applied against the need for that force.’” Bryan v.

MacPherson, 630 F.3d 805, 823 (9th Cir. 2010) (quoting Garner, 471 U.S. at 8, 105 S. Ct.

at 1699, 85 L. Ed. 2d at 7, and Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003)).

B. From Whose Vantage Point is Reasonableness to be Judged?

As articulated in Terry, the level and modality of force chosen by a police officer

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should not be viewed in the first instance through the Court’s eyes; rather, it should be seen

through the eyes of a reasonable officer on the scene. 392 U.S. at 22, 88 S. Ct. at 1880, 20

L. Ed. 2d at 906. A judge must not engage in post hoc (some may say de novo) evaluation

of the police officer’s conduct when determining reasonable use of force because alternative

methods may always be imagined. In re David S., 367 Md. 523, 540, 789 A.2d 607, 616-17

(2002) (citing United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed.

2d 605, 615 (1985)). When reviewing a case originating in Maryland, the Fourth Circuit

noted, “‘The calculus of reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that is necessary in a particular

situation.’” Young v. Prince George’s Cnty., 355 F.3d 751, 755 (4th Cir. 2004) (quoting

Graham v. Connor, 490 U.S. 386, 386-87, 109 S. Ct. 1865, 1972, 104 L. Ed. 2d 443, 455-56

(1989)). On this subject, the U.S. Supreme Court noted:

[W]e stress that a Terry investigation, such as the one thatoccurred here, involves a police investigation “at close range,”Terry, 392 U.S., at 24, when the officer remains particularlyvulnerable in part because a full custodial arrest has not beeneffected, and the officer must make a “quick decision as to howto protect himself and others from possible danger . . . .” Id., at28. In such circumstances, we have not required that officersadopt alternative means to ensure their safety in order to avoidintrusion involved in a Terry encounter.

Michigan v. Long, 463 U.S. 1032, 1052, 103 S. Ct. 3469, 3482, 77 L. Ed. 2d 1201, 1221-22

(1983) (quoting Terry, 392 U.S. at 24, 28, 88 S. Ct. at 1881, 1883, 20 L. Ed. 2d at 908, 910).

C. Examples of Reasonable Force Used in Effectuating a Terry Stop

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There are several instructive cases involving varying degrees of force, akin to a “hard

takedown,” that do not result in a de facto arrest. The holding that deployment of a taser was

reasonable in a Terry stop context in United States v. Colon, 654 F. Supp. 2d 326, 333 (E.D.

Pa. 2009), aff’d on other grounds 434 Fed. Appx. 88, 89 (3rd Cir. 2011), cert. denied, _ U.S.

_, 132 S. Ct. 1584, 182 L. Ed. 2d 199 (2012), is dismissed, without substantial justification,

by the majority opinion in the present case. In Colon, police officers were patrolling a

known high-crime area. 654 F. Supp. 2d at 328. The police observed Colon holding

nervously the right side of his pants. Id. He walked away from the police, even after being

ordered to stop. Id. When his path was blocked by a police cruiser, he ran. Id. The police

officers gave chase and tasered Colon, once to bring him to ground and twice more to prevent

him from reaching into his waistband, where, after a frisk for weapons, the officers found a

handgun. Colon, 654 F. Supp. 2d at 330. The district court held that a police officer may use

force to effect a Terry stop, and use of a taser in dart-mode was considered reasonable, given

the circumstances that Colon was armed most likely. Colon, 654 F. Supp. 2d at 333; see also

United States v. Fields, 449 Fed Appx. 146, 148-49 (3rd Cir. 2011) (holding, in an

unpublished opinion, that the use of a taser did not elevate an investigatory Terry stop to an

arrest, because the defendant’s flight and lack of cooperation made the officers feel

vulnerable and fear for their safety).

Several jurisdictions hold that even significant intrusion on a person’s Fourth

Amendment rights does not convert necessarily a Terry stop into a de facto arrest situation.

In United States v. Lawshea, a law enforcement canine was used to subdue a fleeing

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individual. 461 F.3d 857, 860 (7th Cir. 2006). The Seventh Circuit held that this was a

reasonable level of force to effectuate a Terry stop, given that the individual fled from police

and the officer had reasonable suspicion to believe Lawshea may be armed. Id. The

aftermath of this takedown required hospital treatment of Lawshea for multiple canine bites

and administration of a tetanus shot. Id. The Seventh Circuit held that Lawshea’s own

actions, sprinting away from the officer and reaching for his waistband, justified the police

officer using the canine to subdue him. Id. Given the circumstances, the court held the Terry

stop was not converted into a de facto arrest at the release of the canine. Id. Surely, the

majority in the present case cannot imagine that Lawshea felt free to leave as the police

canine sunk its teeth into his shoulder, penetrating the skin in a more violent and less

controlled way than would have taser darts. Nor can it be said that police policy should not

dictate that an ambulance be called to treat Lawshea’s wounds. The use of a law

enforcement canine, as in Lawshea, is an extreme example of force effectuating a Terry stop.

I do not suggest that this Court would find it necessarily an acceptable use of force in all

instances. That determination must be made on a case-by-case basis, evaluated from the

perspective of the on-scene officer and what he/she confronted. I offer Lawshea merely as

an example of a more extreme use of force than is present in Reid’s case, one that did not

result in transforming a Terry stop into a de facto arrest.

The Fourth Circuit upheld the throwing of an armed suspect on the ground head-first,

the jamming of an officer’s knee into the suspect’s back, and placing the individual in

handcuffs, as reasonable force during the effectuation of an investigatory stop. Young, 355

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F.3d at 756. In United States v. Dykes, 406 F.3d 717, 718 (D.C. Cir. 2005), the Washington

D.C. Metropolitan police used a football-style tackle to effectuate a Terry stop, predicated

on a reasonable suspicion that Dykes was trafficking drugs. Dykes fled when three police

cruisers entered a parking lot where he was conducting an illegal drug transaction. Id.

Dykes was forced to the ground by one of the officers chasing him. Id. The court found this

to be an appropriate use of force to effectuate a Terry stop in that circumstance. Dykes, 406

F.3d at 720. Other courts have concluded similarly to the Dykes court. See, e.g., United

States v. Franklin, 323 F.3d 1298, 1301 (11th Cir. 2003) (pulling down a person from a

chain-link fence and pinning him on the ground is not a de facto arrest requiring probable

cause); United States v. Bonner, 363 F.3d 213, 218 (3rd Cir. 2004) (tackling does not elevate

a Terry into a de facto arrest); United States v. Jackson, 175 F.3d 600, 601-02 (8th Cir. 1999)

(same); United States v. Weaver, 8 F.3d 1240, 1244-45 (7th Cir. 1993) (four officers tackling

a suspect did not cross the bounds of reasonable force in making a permissible Terry stop).

As will be discussed supra, these types of “hard takedowns” are themselves fraught with the

potential for injuries to the police officers and fleeing suspects. These injuries could be as,

or more, serious than those associated with taser use. The types of injuries, including

concussions, broken bones, lacerations, etc., could require medical attention, thereby

prolonging the length of what otherwise may have been a brief Terry stop, had not the

individual bolted or resisted.

D. Was Reasonable Force Employed in Reid’s Circumstances?

Detective Reid’s use of a taser was a reasonable use of force to effectuate a Terry stop

4 There is some debate regarding the reliability of this anonymous tip. The original recipient ofthe tip, Detective Reid’s supervising lieutenant, was not at trial to testify. The veracity of the tipbecomes less of an issue, however, after the officers in the field confirmed, through observation,the facts given by the tipster, before attempting to make contact with Reid. Furthermore, Reid’sdeliberate flight from police may be considered when determining reasonable suspicion toengage in a Terry stop.

5 If only Marshal Will Kane (Gary Cooper’s character in High Noon) had possessed a taser,perhaps some of the bloodshed may have been avoided in that 1952 movie. High Noon (StanleyKramer Productions 1952).

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in the particular circumstances of his encounter with Petitioner Reid. This Court should not

second-guess Detective Reid’s actions, as indulged by the majority opinion.

In considering whether a reasonable officer would consider the use of a taser

appropriate in the circumstances of this case, I begin with applying and weighing the factors

in Ocampo: the nature of the crime, the degree of suspicion, the location and time of day of

the stop, and the subject’s reaction to approaching police officers. 890 F.2d at 1369. Here,

the undisputed facts militate in favor of taser use. The police had an articulable suspicion,

generated by an anonymous tip,4 that a black man (taller than others in a group he was a part

of) would be found in the 1400 block of Pennsylvania Avenue, in control of a black Honda,

and would possess both drugs and a weapon. The location was a known high-crime area

(although the time of day of the encounter was high noon5). Moreover, Reid fled when the

officers approached on foot. On balance, the Ocampo factors suggest strongly that the

officers needed to use elevated, yet still reasonable, force to effectuate a Terry stop of Reid.

Although there appears a dearth of reported cases involving the use of tasers in

effectuating a Terry stop, the facts of Colon are strikingly similar to those of the present case.

6 The State argues that United States v. Russ, 772 F. Supp 2d 880, 891 (E.D. Ohio 2011) is on-point with the present case. We agree, however, with the majority opinion that it isunpersuasive. The Ohio district court did not demonstrate clearly in its opinion that it evaluatedthe use of a taser in a Terry stop context.

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Reid, suspected of being armed, was asked to stop by the officer, but ran off with a

perceptually heavy item swinging in a pocket of his shorts (remember the anonymous tip?).

The officers observed three of the four reasonable suspicion factors, set out in Illinois v.

Wardlow, 528 U.S 119, 123-25, 120 S. Ct. 673, 675-76, 145 L. Ed. 2d 570, 575-77 (2000),

to conduct a Terry stop: Reid was in a known high-crime area; upon seeing the officers, Reid

began to act in a way that indicated to the officers, in their experience, that he was concealing

a weapon–“blading” his body to the approaching officers and performing weapon security

checks by patting his shorts’ pocket; and, Reid went into headlong flight as clearly

identifiable officers got closer. The use of the taser was reasonable in Colon and should be

held reasonable here, as Detective Reid needed to act decisively and swiftly in order to

effectuate the Terry stop of a person the officers had reasonable suspicion to believe may be

armed. See Colon, 654 F. Supp. 2d at 333.

While Colon is the most on-point case to the one before us,6 the levels of other forms

of force deemed reasonable by various courts when effectuating a Terry stop are instructive

by analogy. Before comparing the effect of a taser to the effects of a canine bite or “hard-

tackle,” we need to recount certain background and contextual factual information regarding

the general operational characteristics of the kind of taser in question and the injuries it might

(and might not) cause in greatest likelihood. Although the four corners of the record in

7 This Court has resorted frequently to taking judicial notice of additional facts (not part of arecord, strictly speaking, made in the trial court) that are either matters of common knowledge orcapable of certain verification. See Faya v. Almaraz, 329 Md. 435, 444-45, 620 A.2d 327, 331(1993) (relying on medical journals and reports to give context to what was known at the timeabout AIDS and HIV); see also Armistead v. State, 342 Md. 38, 49-50, 673 A.2d 221, 226(1996) (relying on scientific journals as to the forensic use of DNA); B.N. v. K.K., 312 Md. 135,139-40, 538 A.2d 1175, 1177-78 (1988) (relying on scientific and technical publications toexplicate the science of sexually-transmitted diseases); Pettit v. Erie Ins. Exch, 117 Md. App.212, 228, 699 A.2d 550, 558-59 (1997) (notice taken of definition in Diagnostic StatisticalManual IV). Therefore, in order to place the parties’ arguments in proper context and engage ina rational analysis of them, I rely upon technical and scholarly journals and reports to providepermissible, relevant, and well-established background information about tasers.

8 The record in Reid’s case does not reveal explicitly the brand or model of taser Detective Reidused in the incident on 22 June 2010. In order for a Maryland police officer to be authorized tocarry an ECD, however, he or she must complete both classroom and hands-on training in itsproper use. Code of Md. Regs. (COMAR) § 12.04.05.02, 12.04.05.03(B) (2012). The PoliceTraining Commission (hereinafter the “Commission”) sets the minimum training standards forall Maryland Police and Correction Officers, including the Baltimore City Police Department. Maryland Code (2003, 2011 Repl. Vol.), Pub. Safety Art., §3-201, §3-207. COMAR12.04.05.05 provides that only a Commission-certified instructor may certify another policeofficer. The Commission offers training on two models of ECDs only, TASER® models X-26and M-26. Approved Training - Police, Training Notes, February 1998-November 2011,available at http://www.mdle.net/tnotes.htm (listing the training available to all Maryland policeand correction officers at the end of the monthly newsletter). As the only Commission-certifiedinstructors available were M-26 and X-26 instructors, and Detective Reid, a member of theBaltimore City Police Department, was required to be certified by one of those instructors, it ishighly likely that Detective Reid used a TASER® X-26 or M-26 to disable Reid.

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Reid’s case are thin in this regard, there is a body of presumably reliable information that

provides an understanding from which to make an informed comparison regarding the

reasonableness of the force in question.7, 8

As explained in footnote 8, supra, Detective Reid most likely used either a TASER®

M-26 or X-26 model in subduing Petitioner Reid. The X-26 is the newer model, smaller than

the M-26, and uses a rechargeable battery magazine as its power source, whereas the M-26

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relies on two AA batteries. Charlie Mesloh et al., Fla. Gulf Coast Univ. Weapons & Equip.

Research Inst., A Qualitative & Quantitative Analysis of Conducted Energy Devices: TASER

X26 vs. Stinger S200, 13-14 (2008). The X-26 delivers the same shock level as the battery

wears down, but the shock from the M-26 diminishes as the battery wanes. Id.

A taser operates in two modes: stun (also known as drive-stun) and dart. Report of

the Maryland Attorney General’s Task Force on Electronic Weapons, 2 n.1 (2009), available

at http://www.oag.state.md.us/Reports/ECWReport.pdf. Stun mode is used typically in

close-quarters because the officer must press the taser directly onto the subject’s skin or

clothing. Id. Dart mode is used when the subject is beyond arms length. Id. The darts are

two barbed probes, often described as fish-hooks, cable of being propelled up to 35 feet.

Sebastian N. Kunz et al., Functioning and Effectiveness of Electronic Control Devices Such

as the TASER® — and X-Series: A Review of the Current Literature, J. Forensic Sci., Apr.

2012, at 1-2. Compressed nitrogen gas propels the two darts at 180 feet per second. Kunz,

supra, at 2; A. Bleetman et al., Implications for UK Emergency Departments: An Overview

of Electronic Weaponry, Emergency Med. J., Mar. 2004, at 136.

The X-26 and M-26 tasers deliver an electrical shock that will result in loss of

neuromuscular control, regardless of whether the probes attach to the subject’s clothes or

skin (penetrating up to one-inch with the largest of barbs). Scott Savage, After the Zap:

Taser Injuries and How to Treat Them, Correct Care, Summer 2005, at 9, 19, available at

http://ncchc.org/pubs/CC/archive/19-3.pdf. The darts on either taser model deliver an initial

voltage of up to 50,000 volts, ensuring the two probes complete the electrical circuit, and

9 The National Commission on Correction Health Care explained voltage versus amperage.

An electrical injury can be considered similar to beingstruck on the foot with a falling stone. When the stone hits you,the amount of injury you receive will largely be mediated by twofactors: the size of the rock and height of the fall. Obviously, apebble falling from a roof will cause much less injury than a 100-pound boulder falling even a few inches.

In electrical injuries, the voltage can be viewed as thestone’s height and the amperage as its size. Tasers have a highvoltage (tall height) but low amperage (small size). Thus, a Tasermay fire with 50,000 volts, but it has minimal amperage–like asmall pebble that falls from a roof. It stings, but is unlikely tocrush your foot the way the boulder would.

Scott Savage, After the Zap: Taser Injuries and How to Treat Them, Correct Care, Summer2005, at 9, 19, available at http://ncchc.org/pubs/CC/archive/19-3.pdf.

10 Were it otherwise, certainly the police would not demonstrate the use of tasers to trainees bysubjecting a volunteer to its application, a technique frequently employed by police trainers.

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then deliver approximately 5,000 Volts. Barry E. Mangus et al., Taser and Taser Associated

Injuries: A Case Series, The Am. Surgeon, Sept. 2008, at 862. The 5,000 volts are delivered

in a series of electrical pulses at a very low amperage, approximately 0.5-0.3 joules. Savage,

supra, at 9. Comparatively, the initial amperage of a defibrillator is 200 joules. Id. The

barbs deliver 15-20 pulses per second into the subject for up to a five-second cycle, which

may be repeated by the officer by depressing the trigger again. Kunz, supra, at 2. Thus, the

voltage is high, but the duration is short.9 Id.

Although the pain experienced by a person subjected to a taser hit is not as mild as

a static-cling shock, it is not, for analytical purposes, deadly force.10 Code of Maryland

Regulations § 12.14.01.01(B)(28) (2012) defines deadly force as “the force that a trained and

authorized professional employee uses with the purpose of causing, or which the authorized

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professional employee knows will create, a substantial risk of death or serious bodily harm.”

Although certain organizations describe the taser as lethal and the same level of force as

firearm, studies show that, absent a person’s underlying physical condition predisposing him

or her to an unpredictable injurious consequence, a taser is not lethal when used as intended

by an officer’s training. See Kunz, supra, at 1; Justin Ready et al., Shock Value-A

Comparative Analysis of News Reports and Official Police Records on TASER Deployments,

Policing, 3 Oct. 2007, at 141, 151, available at www.emeraldinsight.com/1363951X.htm;

Wendy M. Denham et al., Injury Patterns Associated with Nonlethal Law Enforcement

Techniques, Topics of Emergency Med., Sept. 2009, at 30, 34; Mangus, supra, at 862. The

Ninth Circuit labeled a taser as an “‘intermediate or medium, though not insignificant,

quantum of force,’” noting also that tasers may often be used to diffuse a situation before

more serious or possibly deadly force becomes unavoidable. Bryan, 630 F.3d at 811

(quoting, among other cases, Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D.

Cal. 2008)).

One study found that less than one percent of tased suspects experienced serious

injuries due to the darts themselves or secondary injuries caused by falling during a tasing.

John Laub, Nat’l Inst. of Just., Dep’t of Just., Study of Deaths Following Electro Muscular

Disruption, 6-7 (2011) (citing Bozeman et al., Safety and Injury Profile of Conducted Energy

Weapons Used by Law Enforcement Officers against Criminal Suspects, Annals of

Emergency Med., 2009, at 480), available at https://www.ncjrs.gov/

pdffiles1/nij/233432.pdf. In fact, there have been no proven tasing deaths, absent a relative

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few where an undisclosed underlying condition of the subject or other contributing factors,

such as PCP use or the subject having a pre-existing heart condition, were implicated. See,

e.g., Denham, supra, at 34-35; Mangus, supra, at 862; Laub, supra, at vii-viii. Therefore,

tasing should be considered for Terry stop analysis as “other than deadly force.” Clearly that

was the case here as Reid survived, without any serious health consequences apparently.

With this knowledge of the painful, but rarely enduring, discomfort of a taser strike,

an effective comparison may be made between the use of a taser versus several types of other

force deemed reasonable by the relevant case law in criminal matters. The officer in

Lawshea, without the benefit of an advance anonymous tip, observed Lawshea and another

person in a high crime area on a routine patrol around midnight. Lawshea, 461 F.3d at 859.

After the officer exited the patrol car, Lawshea ran away. Id. The officer commanded

Lawshea twice to stop and then released the canine when he did not stop. Id. The canine

brought down Lawshea with a bite to the shoulder and was called off promptly by the officer.

Id. When Lawshea attempted to run again, the canine was released again. Lawshea, 461

F.3d at 860. The Seventh Circuit ruled that Lawshea’s suspicious behavior at such a late

hour, combined with his repeated efforts to flee, served as reasonable suspicion for a

Terry stop and use of the canine was reasonable, given that Lawshea was likely armed. Id.

It seems to me that the bites of a police canine are a more significant intrusion upon

a person’s Fourth Amendment rights than taser darts, which may be removed relatively

painlessly. Canine bites can be deep, penetrating wounds, and often damage the surrounding

muscle. Denham, supra, at 36. Extensive soft tissue damage, bone injuries, and infections,

11 Unlike a trained law enforcement canine, a typical civilian dog’s jaw (pit bulls exceptedperhaps, see Tracey v. Solesky, __ Md. __ , __ A.3d __ (2012) (No. 53, Sept. Term, 2011) (filed26 Apr. 2012)), exerts only 200-400 pounds of pressure per square inch. Wendy M. Denham etal., Injury Patterns Associated with Nonlethal Law Enforcement Techniques, Topics ofEmergency Med., Sept. 2009, at 30, 36.

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often requiring surgical and vascular intervention, are common in dog bites because law

enforcement canines are trained to exert typically 500-800 pounds per square inch of

pressure11 when released properly on a suspect. Id. Comparing these injuries to the likely

injuries of a taser dart used properly lead me easily to conclude that the use of a taser was

reasonable here.

The situations in Young, 355 F.3d at 756, Dykes, 406 F.3d at 718, Franklin, 323 F. 3d

at 1301, Bonner, 363 F.3d at 218, Jackson, 175 F.3d at 601-02, and Weaver, 8 F.3d at 1244-

45, demonstrate how a “hard takedown,” using what would be assaultive behavior if executed

by anyone other than a police officer in the execution of official duties, is a reasonable

amount of force if the officer has reasonable suspicion to believe that the fleeing individual

may be armed. Young presented the Fourth Circuit with a dramatic intrusion on a person’s

Fourth Amendment Rights because the police officer threw the suspect to the ground head-

first, placed his knee in the suspect’s back, and handcuffed him. 355 F.3d at 756. The

takedown of Franklin could have posed significant risks of physical harm also as he was

pulled to the ground while climbing a chain link fence in an attempt to evade confrontation

with the officer; however, the Eleventh Circuit held the police conduct in securing him was

12 The Ninth Circuit Court of Appeals expressed that it is not “‘sufficiently clear’” whether apolice officer’s use of a taser on a suspect constitutes excessive force under 42 U.S.C. § 1983. Mattos v. Agarano, 661 F.3d 433, 446 (9th Cir. 2011) (quoting Ashcroft v. al-Kidd, __ U.S. __,131 S. Ct. 2074, 2083, 179 L. Ed. 2d 1149, __ (2011)), cert. denied, __ U.S. __, 132 S. Ct.2682, __ L. Ed. 2d __ (2012). Whether a particular force is excessive, for purposes of § 1983, ishighly circumstantial. Mattos, 661 F.3d at 442. The few cases that discuss tasers and excessiveforce are factually similar, rendering it difficult to analogize them to a broader context. Mattos,661 F.3d at 446–48.

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reasonable. Franklin, 323 F.3d at 1301.12

Because a wide array of federal circuits establish that several different modalities and

degrees of force effectuating a Terry stop were reasonable, all of which involve a significant

likelihood of injury and a potential intrusion on a citizen’s Fourth Amendment rights, this

Court should look to them for guidance in settling on a Maryland position. Based on what

has been considered reasonable by the federal courts and the situation in the present case, the

intrusion on Reid’s person was less serious than that of a police canine bite and no more

serious than bringing a fleeing suspect to the ground by tackling or man-handling.

II. What Has Timing To Do Properly with Evaluating a Purported Terry Stop?

The majority opinion states that because Reid was detained for an “indefinite time

period” waiting for medical personnel to arrive to remove the taser barbs, the Terry stop

ripened surely into an arrest. Reid, __ Md. at __, __ A.3d at __ (Majority slip op. at 14-15).

In doing so, the majority opinion fails to consider two important factors. First, when

considering the length of a Terry stop, the stopwatch stops as soon as either additional

reasonable suspicion or probable cause is developed. Crosby v. State, 408 Md. 490, 506, 970

A.2d 894, 903 (2009); accord Lee, 311 Md. at 652, 537 A.2d at 239-40. Second, Reid’s own

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actions contributed to prolonging the encounter unquestionably. See Sharpe, 470 U.S. at

688-89, 105 S. Ct. at 1577, 84 L. Ed. 2d at 617 (Marshall, J., concurring)

We held in Crosby that a “Terry stop may yield probable cause, allowing the

investigating officer to elevate the encounter to an arrest or to conduct a more extensive

search of the detained individual.” 408 Md. at 506, 970 A.2d at 903 (citing Terry, 392 U.S.

at 10, 88 S. Ct. at 1874, 20 L. Ed. 2d at 899). In Lee, the police ordered, at gun-point, the

defendants to the ground during a proper Terry stop because they had a reasonable suspicion

that the defendants possessed a handgun. 311 Md. at 652, 537 A.2d at 239-40. The

investigatory stop in Lee ripened to an arrest with probable cause as soon as the officers

determined a backpack was too heavy to contain only summer-weight clothes (as claimed)

and likely concealed a weapon. Id. Mere moments elapsed between the defendants being

ordered on the ground (the Terry stop) and the elevation to an arrest. Lee, 311 Md. at 662-

63, 537 A.2d at 245.

The functional stopwatch for the present investigatory stop began when the taser barbs

attached to Reid. Upon reaching the incapacitated Reid, the officer inquired if he had any

illegal objects on his person. Reid stated he had a gun. The officers handcuffed him and

recovered the gun in the right pocket of Reid’s shorts. As soon as the handgun was found,

there is no doubt the officers had probable cause to arrest Reid, similar to the situation in Lee.

Crosby, 408 Md. at 506, 970 A.2d at 903. Although the record is silent on the exact amount

of time that passed between the tasing and the removal of the gun from Reid’s pocket, the

discovery of the gun was inevitable, under the circumstances, with the impending pat down.

13 The majority opinion seems oblivious to the fact that the use of medical personnel in similarcircumstances is a department-by-department decision and without uniformity of outcome. Forexample, the U.S. Air Force permits police officers to remove the taser barbs themselves, as longas they have not penetrated a vulnerable area of the body. United States Air Force SecurityForces Command, Air Force Use of Force Manual, 94 (2009). On the other hand, the New YorkPolice Department requires transportation to the hospital for dart removal in all cases. AGovernment Accountability Office report to the House Subcommittee on National Securityreported that many police departments allow police officers to decide who may remove thebarbs, and how the barbs are removed, on a case-by-case basis. Gov’t Accounting Office, TaserWeapons-Use of Tasers by Selected Law Enforcement Agencies, 16 (May 2005), available athttp://www.gao.gov/new.items/d05454.pdf. As of 2009, of the 24 Maryland law enforcementagencies that use tasers, only two require paramedics and an ambulance be called; six require anambulance to take the subject to a hospital; and, 12 leave it to the officer’s discretion (four didnot report their policy). Report of the Maryland Attorney General’s Task Force on ElectronicWeapons, app. C (2009), available at http://www.oag.state.md.us/Reports/ECWReport.pdf.

14 According to the National Commission on Correctional Care, there are three ways to remove a(continued...)

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Another factor in assessing the acceptable duration of a Terry stop is whether a

suspect’s actions lengthen the duration of what might have been otherwise a shorter Terry

stop. A longer duration does not necessarily transform what commences as a Terry stop into

a de facto arrest. Sharpe, 470 U.S. at 688-89, 105 S. Ct. at 1577, 84 L. Ed. 2d at 617

(Marshall, J., concurring) (while brevity in a Terry stop is important, the suspect’s own

actions extending the stop’s length cannot be overlooked). This was a key holding in

Lawshea, where the defendant’s actions, evading police while suspected of being armed,

caused the police canine to be utilized, leading to Lawshea being detained further, including

for resultant medical attention. 461 F.3d at 860-61.

The majority opinion fixates on the fact that the taser barbs penetrated Reid’s skin,

which, according to Baltimore City Police Department policy,13 may be removed only by a

paramedic.14 The majority opinion argues that this extended the Terry stop to an

14(...continued)taser dart that is not lodged in a vulnerable part of the body, e.g., the throat, face, groin, anyimplants, or the female breasts: 1) remove the dart with a hemostat (a small surgical clip)because the skin is anesthetized due to the stun; 2) use local anesthesia to remove the dart with ahemostat, although often the administration of the anesthesia is more painful than the removal;and 3) use a scalpel to make a small incision, and close the wound with Dermabond®. In thepresent case, Reid was struck in the back, as evidenced by photographs taken by officers at thescene.

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impermissible length. Reid, __ Md. at __, __ A.3d at __ (Majority slip op. at 14-15, 17-18).

The majority does not consider that the need for medical personnel was occasioned by the

fact that Reid fled from the officers, requiring them to use reasonable force to detain him.

Rather, like the defendant in Lawshea, who did not feel free to leave after the law

enforcement canine bit him twice, Reid was also not free to leave during the lawful Terry

stop effectuated by reasonable force necessitated by his conduct. Once the handgun was

found, probable cause existed for a warrantless arrest. Crosby, 408 Md. at 506, 970 A.2d at

903; see Lawshea, 461 F.3d at 860-61; Lee, 311 Md. at 662-63, 537 A.2d at 245.

Additionally, the majority opinion appears enamored with the argument that because

Reid did not feel free to leave the encounter, it became an arrest requiring probable cause.

Whether a person feels free to leave the scene of a confrontation with police merely triggers

the defendant’s Fourth Amendment rights against “unreasonable search and seizure.” U.S.

Const. amend. IV (emphasis added). Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d

at 909; Lee, 311 Md. at 653-54, 637 A.2d at 241. I am compelled to address this because the

majority opinion muddies the analytical waters regarding the two types of detentions

described in Terry–an investigatory stop requiring reasonable suspicion and an arrest

15 The majority opinion unfurls several cases explaining how a suspect who was detained(continued...)

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requiring probable cause.

The majority opinion’s misconception appears most obvious where it states, “A

reasonable person would not feel free, nor even be able, to go under these circumstances:

Reid was, thus, arrested.” Reid, __ Md. at __, __ A.3d at __ (Majority slip op. at 15). This

conclusion leaps over entirely the possibility of an investigatory Terry stop, in which a

person is seized and not free to go, but is not arrested yet. See Terry, 392 U.S. at 27, 88 S.

Ct. at 1883, 20 L. Ed. 2d at 909. Judge Moylan expressed clearly for the Court of Special

Appeals this scenario in Carter v. State, 143 Md. App. 670, 677, 795 A.2d 790, 794 (2002):

The appellant solemnly insists that he “was not free to leave.”Of course, he wasn’t. That’s why this was a Terry-stoprequiring the Terry level of Fourth Amendment justification.Had he been free to leave, this would have been a mereaccosting and the Fourth Amendment would not have beenimplicated. Under Terry, a stopee’s freedom of movement ismost definitely restricted under the command of law. If heattempts to leave after being ordered, perhaps at gunpoint, tostop, he may be shot or otherwise forcibly restrained. Suchconsequences, notwithstanding the appellant’s urging to thecontrary, do not ipso facto transform a Terry-stop into an arrest.

Moreover, it cannot be questioned that an individual with multiple shotguns pointed at him

by police officers would not feel free to leave the scene, as was the case in Lee. 311 Md. at

666-67, 537 A.2d at 247. Therefore, whether Reid felt free to leave is not a turning point in

this analysis; rather, whether the taser was a reasonable amount of force is the relevant

inquiry.15

15(...continued)physically was considered under arrest. Reid v. State,__ Md. __, __ A.3d __ (2012) (Majorityslip op. at 11-18) (citing Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824(1979) (an officer who lacks probable cause of involvement in a violent crime, removes a personfrom a house, brings him to police station, and interrogates him is an arrest); Bailey v. State, 412Md. 349, 987 A.2d 72 (2010) (restraining a person in order to frisk without suspicion of weaponsis a de facto arrest); Longshore v. State, 399 Md. 486, 520, 924 A.2d 1129, 1148 (2007)(handcuffing defendant without suspicion that defendant was armed or violent resulted in a defacto arrest); Dixon v. State, 133 Md. App. 654, 659-60, 758 A.2d 1063, 1066 (2000) (having noindication of weapons, police arrested the defendant by blocking his car, handcuffing him, andplacing him in a squad car)). As the majority admits readily, all of these cases involved personsthat were not suspected of being armed and therefore differ significantly from the present case. Whether a suspect is believed to be armed weighs heavily on how much force may be consideredreasonable when attempting to detain and question the suspect. See United States v. Ocampo,890 F.2d 1363, 1369 (7th Cir. 1989) (citing, among other cases, United States v. Serna-Barreto,842 F.2d 965, 967 (7th Cir. 1988)); see also Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct.1694, 1707, 85 L. Ed. 2d 1, 10 (1985).

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Finally, we should consider the safety concerns of both police officers and suspects

when judging the reasonableness of the use of technology enhancements employed to

accomplish more effective policing. A “hard takedown” may morph easily into a hand-to-

hand combat situation, which poses heightened physical risk to the suspect as well as the

officer. A study funded by the National Institute of Justice, the research arm of the

Department of Justice, found that older-generation ECDs caused no major or moderate

injuries to suspects or officers. Conversely, using a flashlight, baton, fists, or other forms of

bodily force to subdue a suspect caused moderate or major injury in 46 to 80 percent of the

cases studied. Geoffrey P. Alpert, Police Use-of-Force Outcomes: Injuries and Control, The

Police Chief, Oct. 2010, at 109, available at http://ww.nxtbook.com/nxtbooks/

naylor/CPIM1010/#/108. As officers increase the amount of force used, the likelihood of

injury to both officer and suspect increases. Id. The use of tasers, however, has decreased

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the amount of injuries to both suspects and officers. Another study funded by the

Department of Justice found that the police departments in Orlando, Florida, and Austin,

Texas, after supplying tasers to their officers, experienced 50% and 30% reduction in injuries

to suspects, respectively, and a 60% and 25% reduction in police officer injuries,

respectively. Alpert, supra, at 113-14.

Close-quarters combat can end in tragedy. Reed v. City of Cleveland, 1:04CV0546,

2006 U.S. Dist. LEXIS 96549, at *14 (N.D. Ohio 6 Sept. 2006), highlights this. In Reed,

police officers attempted to make a routine investigatory stop and handcuff the two

defendants for the officers’ safety during questioning. Reed, 2006 U.S. Dist. LEXIS 96549,

at *13. When one defendant ran, an officer gave chase, tackled the defendant, and a brawl

ensued. Id. The defendant, according to the officers’ testimony, attempted to take the

pursuing officer’s weapon. Id. In the ensuing fight, the officer received a bloody nose and

the defendant was shot and killed. Reed, 2006 U.S. Dist. LEXIS 96549, at *14.

Speculatively, had the officer in Reed used a taser to subdue the fleeing suspect, it is likely

he would still be alive, or at least have a better chance of survival, as compared to the likely

outcome of a bullet to the heart at point-blank range. This Court should encourage the

decrease of the likelihood of death of suspects and officers.

The situation in Reed highlights also why the majority opinion’s use of Garner to

equate the use of a taser to the use of a firearm is unpersuasive. A bullet, when fired at the

center mass of a suspect, has the substantial risk of death or serious bodily harm, unlike a

taser. Furthermore, the situation in Garner differs significantly from the present case: the

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officer in Garner surmised that Garner was not armed and used deadly force nonetheless to

subdue him for what amounted to suspicion of having committed a felony. 471 U.S. at 3,

105 S. Ct. at 1697, 85 L. Ed. 2d at 5. The Supreme Court declared unconstitutional the

Tennessee law because the blanket approval of the use of deadly force to capture a suspect

thought to have committed a felony, regardless of whether the suspect was armed, was a

violation of the Fourth Amendment’s command against unreasonable search and seizures.

Garner, 471 U.S. at 11, 105 S. Ct. at 1707, 85 L. Ed. 2d at 10. As explained supra, a taser

is not deadly ordinarily when used properly; conversely, a firearm would be considered

deadly and therefore subject to the restrictive view enunciated in Garner. Id.

The consequences of causing police officers to hesitate to use a taser, where justified

by the extant circumstances, during a Terry stop to incapacitate a fleeing suspect cannot be

understated. In the present case, the majority opinion would require Maryland police officers

either to use needlessly their martial arts or linebacker skills or stand by as the fleeing suspect

eludes into the sunset, even though the officer has reasonable suspicion to believe the suspect

is armed and a potential threat to the officer and the public. Suffering an avoidable escape

was an option decried by the Supreme Court in Adams, 407 U.S. at 145, 92 S. Ct. at 1923,

31 L. Ed. 3d at 616.

For the foregoing reasons, I would affirm the Circuit Court’s decision not to suppress

the weapon found on Reid. The police officer seized the weapon during a lawful Terry stop,

based on reasonable suspicion, which was effectuated by reasonable force commensurate to

the particular situation. I would uphold the denial of Reid’s request to suppress the evidence

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acquired as a result of the use of the taser. The judgment of the Circuit Court for Baltimore

City should be affirmed.

Judge Barbera and Judge McDonald authorize me to state that they join in the views

expressed in this dissenting opinion.